Historiography and Constitutional Adjudication

Modern Law Review (2022)

30 Pages Posted: 31 Jul 2020 Last revised: 1 Nov 2022

Date Written: October 31, 2022

Abstract

Lawyers and judges often use history in constitutional adjudication to provide context for constitutional interpretation. But there is debate about the extent to which historiography – the
critical study of how history is written, developed by professional historians – is relevant to
constitutional adjudication. This article argues that historiography has little relevance to constitutional reasoning grounded on historic legal sources such as court cases or legislation.But when constitutional reasoning relies on non-legal, general historical sources, historiography provides important insights. Arguments based on general historical sources – particularly originalist ones – can and should be critiqued on historiographical grounds. These methods show that general
historical sources are unlikely to generate precise and objective constitutional meaning but can
be used to develop and constrain many constitutional arguments, including those concerning
constitutional practice, purpose, or values. Historiographic methods are important for lawyers
and judges seeking to critique or make constitutional arguments grounded on general history.

Keywords: historiography, constitutional law, reasoning

JEL Classification: K00, K39

Suggested Citation

Partlett, William, Historiography and Constitutional Adjudication (October 31, 2022). Modern Law Review (2022), Available at SSRN: https://ssrn.com/abstract=3664470 or http://dx.doi.org/10.2139/ssrn.3664470

William Partlett (Contact Author)

Melbourne Law School ( email )

185 Pelham St
Carlton VIC
Melbourne
Australia
+61 3 8344 8740 (Phone)

HOME PAGE: http://law.unimelb.edu.au/about/staff/william-partlett

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